July 20, 2012

Attempt, accomplice, conspiracy — about complicit/Inchoate crimes

As a Law Student, this is something that fascinates me. Attempt, accomplice, and conspiracy charges are brought in cases of either complicit or inchoate crimes. What are the differences, and why do prosecutors use these charges?

All 3 can be brought in cases of inchoate crimes. Inchoate means, “In the beginning stages” — that is, a crime that has not yet reached fruition. Think of a bank robber holding a shotgun and wearing stocking over his head, walking towards the bank. Suddenly, someone inside the bank locks the door and calls police. This guy would be charged with Attempt.

Now, let’s say he has a partner walking with him, not holding a gun, but holding a sack for cash. This guy is obviously a helper in the crime, and as such, would be charged with a complicity charge — either accomplice or conspiracy, though most likely accomplice. Now imagine a get-away driver parked a few blocks away, just sitting there inside the car, fully unarmed. This guy would also be charged with complicity, either accomplice or conspiracy, most likely conspiracy.

Now, let’s look at why the prosecutor charged as he did in my made up example.

The prosecutor likely can’t prove Bank robbery — courts have held that people can change their mind and abandon crimes in progress. Even though it’s clear this guy is about to rob the bank — he hasn’t entered the bank yet, and as such, a charge of bank robbery would likely fail. ( This is from a real case — this example is mostly true, not made up. I added the get-away driver ). I don’t like this — the fact that crime was stopped by someone inside the bank shouldn’t relieve our robber of liability for bank robbery — he’s still a bank robber, just an incompetent one. However, because of the introduction of psychology to the criminal system, he would get off on the appropriate charge. The defense would call an expert psychologist to the stand, and the psychologist would testify something like, “He was conflicted, and might have changed his mind about committing the robbery.” A jury wouldn’t buy it, and convict — but an appeal court could buy it, and reverse the Jury’s finding — setting a precedent that it can never be charged in similar cases again. This is a core problem with our justice system — appeal judges can vacate convictions, and do on reasons that are flat-out wrong. So, the prosecutor, knowing that his case would be reversed on appeal ( since that’s what really happened ), can no longer bring the appropriate charge, and thus, will lower the charge to attempt( in the real case, no expert was brought to the stand. The appeal judge just felt that the defendant might have changed his mind, and threw out the conviction ). This lower charge has a lower prison sentence as well — meaning our bank robber will be out sooner, and committing other crimes. ( As also really happened ).

Now, let’s move on to our accomplice. The criminal code used to have derivative liability for people helping a crime — that idea was called accomplice. This is a charge to a person who is helping a crime at the moment of the crime, usually by committing a crime himself. In this case, the accomplice wanted to receive stolen goods — the loot from the bank robbery — so, is charged as an accomplice rather than a conspirator. This is one instance where the law has improved over time. When it was a derivative crime, if the principal actor ( the main bad guy ) was let off, all accomplices would be as well. Now, we treat the accomplice separately, and see if they were helping the crime, or committing other crimes in order to help the crime. It is reserved for felonies — there is no such thing as an accomplice to a misdemeanor. The principal actor has to be committing a felony, and the accomplice has to have aided, abetted, commissioned, or encouraged the crime. Realistically, it’s the exact same as conspiracy — but the sentence is stiffer and the burden of proof higher vs. conspiracy. Prosecutors bring this charge when they’re pretty confident they can show that the person engaged in behavior designed to aid the crime, and was “caught red handed” during the commission of the crime — or that the main actor turned on him– so that the main actors sentence is lessened.

Conspiracy is a bit harder to explain. Conspiracy charges reduce the rules of evidence. Testimony that would otherwise be hearsay, and thus inadmissible, can be brought in conspiracy charges. No illegal act is needed — only to show that the person agreed to help the crime in some way. This way can be minor — providing information, serving as a look-out, or even lessor offenses. As such, conspiracy is the lowest complicity charge, and has the lowest sentence. Prosecutors bring this charge when they can prove little else than association — that the defendant knew the main actor( in this case the bank robber ), and either had helped that person in some way, or was thinking about helping them in some way. Usually, this is the charge that a snitch is charged with — conspiracy has the lowest sentence, and allows otherwise inadmissible evidence to enter the record. A prosecutor will bring this charge either to get the evidence, or will bring this charge when he can’t provide enough proof of the person being an accomplice. For the most part, it means that the prosecutor is not sure of his case, and wants to relax the rules a bit in order to win. The only thing a prosecutor need prove is agreement. This can be shown by testimony ( Jailhouse informer says, “I heard him say he wanted to help!” — which would be hearsay under normal rules), or by coordinated action ( The get-away driver happened to know the bank robber, and was in the same place and the same time. Funny co-incidence, don’t you think? ). Conspiracy is always charged with the culpability of what the person thought he was doing, or the natural consequences of his help. This is FAR reduced as far as the charge/sentence goes. A criminal conspirator need only say, “I though I was helping him escape after he stole a pizza!” — and the prosecutor is now bound to this crime as the main offense, rather than the crime that did occur( unless he can show that the real crime was a natural consequence of his help — very hard to prove in a failed crime — but maybe something that can be proved in a complete crime ). This is something I don’t like about conspiracy charges — defendants are charged with what they say they were planning to do, rather than what the objective outcome is or would be. Conspiracy gets the prosecution a conviction — but it is so minor, that it may as well not count as such. On the other hand — one thing I like about conspiracy is that the burden of proof is so low, prosecutors almost always get convictions on it.

Conspiracy is so easy to convict on, prosecutors can get convictions even in cases where they shouldn’t. For example, a brother in jail can be charged with conspiracy for crimes that his free brother committed — and he’d be convicted — even though there’s no way he could have helped commit the crime. The prosecutor would only have to prove that the in-jail brother at one point in his life, agreed to do something that helped the brothers crime eventually. Bang! conspiracy! In this case, the in-jail brother had taught the free brother how to make whiskey back when they were younger. He then committed tax evasion, and was arrested and jailed for that. His brother decided to do some moonshining to make ends meet while his brother was in jail. The moonshiner got caught — and the other brother did as well. Teaching his brother how to make whiskey was the act that created a conspiracy — even though he had no idea his brother would go on to be a moonshiner. Moonshining is a felony! I disagree with conspiracy — I think jail should terminate any criminal agreements. But, the law does make sense — it allows prosecutors to turn people into informers.

I feel that we are too soft on crime. This bank robber should be charged with bank robbery — he was in the act, and just happened to fail. But some activist judge somewhere threw that out, on the grounds that this criminal *might* have changed his mind?!? That’s lunacy. Accomplice crime seems to be ok, since we no longer would automatically vacate the accomplice if the main criminal gets off on some technicality. Conspiracy is much too weak. Yes, this is to protect the person charged, since the rules of evidence are relaxed considerably — I can live with that. What bothers me is that conspiracy is charged at the culpability level of what the person says they thought at the time, rather than the objective standard of what the real crime was or would be. A conspirator to a bank robbery could easily say the right thing to have it reduced to a conspiracy to steal a pizza( which would be a misdemeanor ), even if the main actor did rob a bank, take hostages, and rape one of them! Conspiracy can be reduced to misdemeanor levels and still hold — jailhouse snitches wouldn’t snitch otherwise, and conspiracy is a way to recruit snitches. It also bothers me that conspiracy is too easy to prove — it creates a system where real criminal get soft sentences, while relatively minor ones get multiple charges.

If I were in the legislature, I think this is one hole I would try and close. That conspiracy should charge at the level of the objective crime, rather than the level of the crime the defendant says he wanted to aid.